United States v. Rizzo (Perko)
694 F. App'x 25
| 2d Cir. | 2017Background
- Michael Perko pleaded guilty to conspiring to possess and distribute 50 kg+ of marijuana and received a three-year supervised release term following a lenient initial sentence.
- Shortly after release, Perko committed violent and harassing acts against family (burning clothes, slashing tires, grabbing ex-wife) while on supervised release; he admitted to some misconduct and pled guilty to the supervised-release violation specifications.
- The District Court revoked Perko’s supervised release and imposed the statutory-maximum 2-year imprisonment for the violation, to be followed by two more years of supervised release.
- Perko appealed, arguing procedural and substantive unreasonableness of the above-Guidelines sentence, insufficient consideration of his mental health needs, failure to credit time spent in state custody, and that the district court did not provide a written statement of reasons.
- The Government and Perko agreed to a limited remand for the district court to supply a written statement of reasons; Perko did not seek full resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural adequacy of district court's oral explanation for above-Guidelines sentence | Perko: court failed to state specific §3553(a) factors and why Guidelines were insufficient | Gov: oral statements and context made reasons clear; no rigid formula required | Affirmed: oral explanation sufficient under Aldeen; §3553(c) met in context |
| Substantive reasonableness of two-year custody (variance) | Perko: two years is shockingly high relative to 4–10 month Guidelines range | Gov: variance justified by seriousness and continuing risk of violent/intimidating conduct | Affirmed: variance not shockingly high or unsupportable |
| Consideration of mental health needs | Perko: district court failed adequately to weigh mental-health treatment needs and placement | Gov: court acknowledged needs and reasonably relied on BOP’s ability to provide/transfer treatment | Affirmed: court adequately considered mental health; BOP controls placements |
| Credit for time in state custody | Perko: should receive credit for ~4 months in state custody related to post-release conduct | Gov: credit determination is for BOP, not district court at sentencing | Affirmed: district court proper to decline; BOP may decide credit post-sentencing |
Key Cases Cited
- United States v. Aldeen, 792 F.3d 247 (2d Cir. 2015) (§3553(c) requirements and supervised-release sentencing specificity)
- United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012) (standard for substantive unreasonableness)
- United States v. Pineyro, 112 F.3d 43 (2d Cir. 1997) (BOP, not district court, determines pre-sentence credit)
- United States v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998) (district court cannot grant jail-credit at sentencing; §2241 review available)
- Chambers v. United States, 106 F.3d 472 (2d Cir. 1997) (same principle on custody credit)
- United States v. Jones, 460 F.3d 191 (2d Cir. 2006) (remand practice to permit district court to supply written statement of reasons)